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European Commission to make new proposal on the Regulation on public access to EU documents - the state of play

28 March 2012

Key Points:
- Commission move to break the "institutional impasse"
- Commission proposal fails to reflect changes in the Lisbon Treaty: all documents concerning the legislative process should be made public as they are produced
- Article 4.3 "seriously undermines" democracy

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The European Commission Programme for 2011 (ref no: 2011/SG/006) states that, in March, it will put forward a proposal to amend the Regulation on public access to EU documents (1049/2001) with the stated aim to:

"Incorporate in regulation 1049/2002 regarding public access to European Parliament, Council and Commission documents the changes brought about by the entry into force of the Treaty of Lisbon (Article 15(3) of the Treaty on the Functioning of the European Union) extending the regulation scope to all institutions, bodies, offices and agencies of the European Union."

This proposal by the Commission begs two big questions:

1. Does Article 15.3 of the TFEU in the Lisbon Treaty have wider implications than simply proposing to extend the scope of the Regulation to "all institutions, bodies, offices and agencies of the European Union"?

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The simple answer is Yes.

The European Commission put forward proposals to amend Regulation 1049/2001 on 30 April 2008: Proposed amendments: Explanatory Memorandum and Annotated text (pdf) to the Regulation 1049/2001/EC Regulation 1049/2001/EC (pdf). The European Parliament agreed its position on 11 March 2009 but did not formally adopt it as its 1st reading position. On 20 March 2009 the Council effectively rejected, on the advice of its Legal Service, the parliament's position by deciding that 26 of its amendments were "Inadmissible - goes beyond the scope of Art. 255 [Amsterdam Treaty]" or "Goes beyond the object of the recasting proposal". The Legal Services of the parliament disagreed. Since then there has been no movement at all (see details below).

In January 2010 the Commission issued an: Explanatory note from the Commission (pdf) which said:

"If... it appears that the legislative procedure for the adoption of the Commission's recast proposal cannot be concluded within a reasonable time frame, the Commission will consider the possibility to submit a limited proposal amending the current Regulation (EC) No 1049/2001 only with regard to the changes introduced by Article 15(3) of the Treaty on the Functioning of the European Union."

The important phrase here is the Commission's intention - if the "institutional impasse" could not be broken - to propose amendments:

"with regard to the changes introduced by Article 15(3) of the Treaty on the Functioning of the European Union."

But the Commission planned proposal only cover Article 15.3 sub-para 3 of the TFEU which would extend the scope of the Regulation to cover all institutions, bodies, offices and agencies of the EU.

However, Article 15.3 also states in sub-para 5 that when "considering" draft legislation (Article 15.2):

"The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures".

Note it refers to "legislative procedures" in the plural. This Treaty commitment reflects Article 15.1 which requires all "institutions, bodies, offices and agencies" of the EU to "conduct their work as openly as possible", "in order to promote good governance and ensure the participation of civil society" - this is a more specific application of the general rule set out in Article 1 of the TEU.

Taken together these elements of Article 15 suggest that Article 4.3 of Regulation 1049/2001 should be deleted. Article 4.3 states that:

"Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure." [NB: access has never been granted in the "public interest"]

This "exception" is used to refuse access to documents because "disclosure of the document would seriously undermine the institution's decision-making process". The Council routinely uses this power to deny access to documents "under discussion" which are part of the legislative process. It is unthinkable at the national level that documents and records of legislative discussions would be kept secret from the public - yet this is how the Council has operated for years under Article 4.3.

Article 4.3 seriously undermines the democratic process.

The legitimacy of Article 4.3 of the Regulation is further questioned in a Working Document prepared by Heidi Hautala MEP who is the Rapporteur on on the Annual Report on public access to documents. The exception "disclosure of the document would seriously undermine the institution's decision-making process" was inserted into Regulation 1049/2001 to:

"mirror the spirit of a specific former [Amsterdam] Treaty provision (Article 207(3) TEC) which required transparency of Council legislative preparatory works, “while at the same time preserving the effectiveness of its decision-making process." (Working document, p4)

But there is:

"no reference to the concept of protection of the decision-making process in the new Treaties, and the current "survival" of this concept is based only on Article 4(3) of Regulation (EC) 1049/2001."

The repeal of Article 4.3 is also backed by the European Parliament in the Resolutions of 11 March 2009 and 12 May 2010 (Amendment 41).

And if was not reason enough there are other commitments in the Lisbon Treaty which cannot be met unless Article 4.3 is repealed. The new Title II of the TEU in Article 11.1 requires EU institutions to give "citizens and representative associations the opportunity to make known and publicly exchange views" in "all areas of EU action" and Article 11.2 expressly requires "open, transparent and regular dialogue with representative associations and civil society". How can these Treaty obligations be met if the public and civil society are denied access to to records of discussions of on-going legislative discussions and, in many instances, to documents concerning implementation?

Article 4.3 must be repealed. It would be a travesty if the advances in openness through access to documents built into the Lisbon Treaty "brought about by the entry into force of the Treaty of Lisbon (Article 15(3) of the Treaty on the Functioning of the European Union)" were not to be part of the promised Commission proposal.

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2. How will this proposal affect the April 2008 proposals put forward by the Commission for changes to the Regulation which has been stalled for nearly two years because of a fundamental disagreement between the Council of the European Union and the European Parliament leading to an "institutional impasse"?

The first question is how did the "institutional impasse" come about?

The European Commission put forward proposals to amend Regulation 1049/2001 on 30 April 2008: Proposed amendments: Explanatory Memorandum and Annotated text (pdf) and Statewatch Analysis June 2008. The Regulation 1049/2001/EC Regulation 1049/2001/EC (pdf).

On 11 March the European Parliament agreed its position but did not formally adopt it as its 1st reading position: Resolution on Commission proposals as adopted on 11 March 2009 (Rapporteur: Michael Cashman MEP, pdf). However, the parliament did not formally adopt its report as its 1st reading position. The parliament rejected the proposed definition of a "document" and put forward amendments to the Commission's proposals as well as new amendments over which it hopes to negotiate with the Commission.

Even before the parliament's decision of 11 March 2009 The Council's Legal Service advised it to reject the European Parliament's position. The released version of the Council's Legal Service is massively censored containing no information on the issues: Opinion of the Legal Service (dated 17 February 2009, pdf). However, the substantive point in the Council Legal Service's Opinion was clearly stated in Council document no: 7791/09 (20 March 2009, pdf). The Council Legal Service argued that the EP could amend the Commission proposals but could not introduce new amendments of its own - this rejecting 27 EP amendments. The Opinion of the Legal Service of the European Parliament's (EP): Opinion on the EPs' amendments (issued in 14 April 2009) took on, and rejected, the arguments used by the Council Legal Service.

In December 2009 European Parliament discussed the Regulation again: Access to EU documents: urgent update of rules needed (Press release, pdf) and Full-text of Resolution (pdf). The Resolution was tabled by the S&D, ALDE, Greens/EFA, ECR and GUE/NGL groups and adopted by 341 votes to 206, with 20 abstentions. Greens/EFA Shadow Rapporteur, Heidi Hautala MEP said: "if the Council and the Commission do not budge from their positions, Parliament should reject the whole proposal".

In January 2010 the Commission issued its: Explanatory note from the Commission (pdf) stating:

"If... it appears that the legislative procedure for the adoption of the Commission's recast proposal cannot be concluded within a reasonable time frame, the Commission will consider the possibility to submit a limited proposal amending the current Regulation (EC) No 1049/2001 only with regard to the changes introduced by Article 15(3) of the Treaty on the Functioning of the European Union."

The European Parliament returned to the issue on 22 March 2010: Draft report on amending the Regulation (pdf): Statewatch Comments on this draft (pdf) and on 12 May 2010: Draft EP report (Rapporteur: Michael Cashman MEP)

Since mid-2009 the Council Working Party has spent no time discussing its draft position - apart from verbal report back from the Council Presidency it has not considered the Commission proposals or the parliament's position. The Commission stated that it could not consider the parliament amendments until they were adopted as a 1st reading position - which the parliament refused to do because of the Council's position rejecting out of hand a swathe of its amendments. Hence the "institutional impasse" which has lasted from mid-2009 until the present.

The Commission, by presenting a new, very limited proposal in March, is seeking to put an end to the impasse. The Council has shown no enthusiasm at all to discuss the issue because the majority of Member States are happy with how the current Regulation is working. This leaves the European Parliament with a number of choices:

1) it could agree the new Commission proposal, hopefully by seeking to amend it by repealing Article 4.3;
2) it could agree a position but again refuse to adopt a 1st reading position on the Commissions new proposal;
3) it could abandon it long-held, detailed amendments, position by dropping the 27 amendments the Council objects to in order to re-start the legislative process - to do so would be a massive climb down, conceding victory to the co-legislator, the Council.

Tony Bunyan

For background documentation and developments see: Observatory: the Regulation on access to EU documents: 2008 - 2011

For the full history and documentation on Access to documents in the EU see Statewatch's Observatory: FOI in the EU: Reporting on openness and secrecy in the EU since 1992